Dundee plater made redundant during downturn in work loses unfair dismissal claim

About this case:

• Citation:
  4100144/2022
• Judgment:
  External link
• Court:
  Employment Tribunal (Scotland)
• Judge:
  Employment Judge M Kearns

The claimant, Mr G Swinton, aged 61, was made redundant from his position at Texo Group Ltd on 5 January 2022. The respondent admitted dismissal but claimed that appropriate steps had been taken to mitigate the claimant’s loss.

The case was heard by Employment Judge Mary Kearns. The claimant appeared in person while the respondent was represented by Mr R Philips, solicitor.

Incorrectly scored

The claimant was employed on a temporary contract in a fabrication workshop at the Port of Dundee between March 2019 and January 2022. The workshop made large steel items, and the claimant’s role was to tack together pieces of metal for the welders to weld, ensuring the gaps and measurements are correct and allowing for shrinkage during the welding process.

In September 2021, the respondent entered a quiet period in which it received fewer orders and its management team thought employee numbers might have to be reduced. Accordingly, it constructed a pool of the 18 employees on temporary contracts and scored them on a number of criteria including length of service competence, range of skills, safety, and general conduct. The claimant’s provisional score was listed as 332 points.

The respondent received sufficient new business in September 2021 as to allow for the shelving of the redundancy process. However, in mid-December due a number of delays in significant orders the process was considered again, and the claimant received an “at risk” letter. Following two individual consultations, the claimant received a letter of dismissal dated 21 December 2021. He was offered a chance to work as an agency worker at the respondent’s sister company, Texo Recruitment Ltd, but did not apply to do so.

It was the claimant’s case that he had been scored incorrectly on the “length of service” criterion, as he had been incorrectly listed as starting nine months later than he had. As a result, he was underscored by 12 points in the criteria, albeit he did not report this to the respondent until two months after his dismissal. It was noted by the respondent that had the claimant been scored correctly he would still have been in the lowest six and therefore the outcome would have been the same.

Within range of conduct

In her decision, Employment Judge Kearns began: “Mr Phillips submitted and I accepted that following a review of orders and work load and the fact that some large orders were delayed or had failed to materialise, the respondent was entitled to decide that it required fewer “temporary employees” in Dundee and specifically that it no longer needed six of the 18 temporary employees. Accordingly, I was satisfied that the reason for dismissal was redundancy, which is a potentially fair reason for dismissal under s98(2)(c) of the Employment Rights Act 1996.”

Addressing whether the claimant’s dismissal was reasonable, she said: “Meaningful consultation took place with the claimant at two meetings at which he was given the opportunity to put forward any suggestions he might have about ways to avoid redundancy or mitigate the impact. He was given the chance to discuss the selection criteria and to challenge his provisional scoring and he did so in relation to his scores for safety and competence. His provisional score was then reviewed.”

On whether the mistake in his scoring had any effect, she continued: “As the result would have been the same, I did not conclude that this issue rendered the dismissal unfair. The respondent took its decision in good faith on the basis of the information provided to them at the time. The claimant had the opportunity to challenge it and he did not do so. Had the error been spotted and corrected, it would not have changed the outcome. Although the claimant’s ranking in the group of at risk employees would have risen, he would still have been in the final six.”

Judge Kearns concluded: “I accepted the respondent’s evidence that there was a genuine diminution in their requirement for employees to do work of the kind the claimant was employed to do at the relevant time in Dundee and that they did not have vacancies into which the claimant could have been redeployed. In all the circumstances, whilst acknowledging the very real distress that dismissal for redundancy has caused to the claimant, I concluded that the dismissal was genuinely due to a downturn in work and that it was within the range of conduct a reasonable employer could have adopted in the circumstances.”

The claim was accordingly dismissed.